In August of this year, the U.S. District Court of South Carolina halted a federal moratorium on the 2015 Obama era WOTUS rule for 22 states.  As a result, two different federal definitions are being applied in states across the country as to what constitutes a “water of the US”.  Naturally this is problematic for companies siting new facilities in different states.  Applicants seeking permits with the U.S. Army Corps of Engineers in many Northeast, West Coast and some Midwest states like Ohio, Pennsylvania, Tennessee and Illinois are now required to follow the 2015 WOTUS rule.  Most of the Midwest and Southeast states including Kentucky, West Virginia and Indiana are still under the pre-2015 WOTUS (7-27-17 EPA-Corps WOTUS Re-code) rule for wetlands and stream permitting.

In practice, this abrupt change is creating permitting uncertainty as regional Corps offices, consultants and permit applicants adjust to a tenuous WOTUS rule in Ohio, Tennessee and other affected states.  Since the August court ruling put the 2015 WOTUS rule in place with no lead time, applicants are often assessing projects under the 2015 WOTUS Rule with little or no published guidance from the Corps.  Unfortunately, little regulatory certainty is on the horizon as litigation is ongoing and a completely new rule is due for public comment in the coming months.

Going forward, permit applicants may want to coordinate with the Corps of Engineers even earlier than in years past when assessing potentially jurisdictional streams and wetlands.  The rule changes and potential for additional changes may delay the Corps permitting process even further and require a longer lead time to development.

If you have questions about a site development and potential stream and wetland permitting needs, contact Josiah Frey at josiahf@smithmanage.com. Josiah is an Environmental Scientist at Smith Management Group.